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1.1 In these general terms and conditions the following definitions apply: Nutrilab Nutrilab B.V. based in Giessen, registered at the commercial register under number 18114291. Customer The natural person, whether carrying out the execution of his or her profession or not, company or legal person who negotiates with Nutrilab regarding the realization of an agreement and/or enters into an agreement with Nutrilab. Activities The performance of research and/or carrying out of analyses and/or delivery of products and/or offering of advice or services by Nutrilab, all this in the broadest sense of the word. Quotation The written quotation and/or estimation that Nutrilab sends to the Customer regarding the delivery of goods and/or services, based on an accompanying description and any conditions that apply to the quotation/estimation.
1.2 Insofar as items and goods are mentioned in these general terms and conditions, a maximally corresponding meaning is contributed to the content and scope of the concerning stipulations regarding the carrying out of services.
2.1 These general terms and conditions apply to each offer, quotation, assignment and legal action, however named, provided by, entered into or carried out by Nutrilab. These general terms and conditions have been established by Nutrilab and deposited at the Chamber of Commerce Brabant under number 18114291. The most recent version always applies.
2.2 By placing an order as well as by accepting an offer made by Nutrilab, the customer accepts the applicability of these general terms of delivery.
2.3 Once the general terms and conditions apply, they are also applicable regarding eventual new and/or additional offers, orders, agreements and other (legal) acts with the Customer without further notification.
2.4 Possible deviations from these general terms and conditions are only applicable when explicitly confirmed by Nutrilab in writing.
2.5 Different from what is established in Article 6:225 paragraph 3 of the Dutch Civil Code, the applicability of any and all (purchase) conditions by the Customer is explicitly excluded. Exclusion of the applicability of these general terms and conditions regarding (purchase) conditions by the Customer is not possible. In case of eventual conflicts between the Customer’s general terms and conditions and these general terms and conditions, these terms and conditions will prevail.
2.6 In case of uncertainty regarding the explanation of one or more provisions within these general terms and conditions, the explanation must be done ‘in the spirit of’ this provision.
2.7 If a situation which has not been settled within these general terms and conditions occurs between parties, this situation must be judged in the spirit of these general terms and conditions.
2.8 If Nutrilab does not always demand strict compliance with these general terms and conditions, this does not mean that its provisions are not applicable or that Nutrilab would lose the right to demand strict compliance with the provisions stated in these general terms and conditions in any way.
2.9 If any stipulation stated in these general terms and conditions is found to be invalid or declared unenforceable (in court), this does not affect the applicability of other stipulations. In that case Nutrilab has the right to replace the stipulation in question with a stipulation that approaches its scope as much as possible without it being invalid or possibly declared unenforceable.
2.10 Nutrilab is authorized to unilaterally alter these general terms and conditions. The altered general terms and conditions apply to new orders from the time the alteration was made. Nutrilab will inform the Customer about the alterations in writing.
3.1 All offers and quotations by Nutrilab are non-binding, unless the quotation/offer explicitly states otherwise.
3.2 An order placed by the Customer is binding, Nutrilab cannot be held to its quotation or offer if the Customer can, within reason, understand that the quotation or offer, or a part of it, contains an obvious mistake or clerical error.
3.3 The prices that are listed in a quotation or offer are excluding VAT and other government taxes, possible costs concerning the agreement, including travel and accommodation costs, costs for shipping and administration, unless stated otherwise.
3.4 A quotation or offer requested by the Customer is based on the information provided by the Customer, which Nutrilab may expect to be accurate.
3.5 The Customer will solely use the offer made by Nutrilab, including the knowledge and data provided by Nutrilab, for the evaluation of his interest in placing the order. This provision also applies to proposed alterations, additions and/or extensions of the order.
3.6 Alterations, additions and/or extensions of the quotation are only binding when confirmed by Nutrilab.
3.7 An assembled quotation does not obligate Nutrilab to execute a part of the offer for a corresponding part of the listed price. Offers and quotations do not automatically apply to future orders. 3.8 Nutrilab is not bound to the content of folders, advertisements, printed matter etc. unless it is explicitly referred to in the agreement.
4.1 An agreement of any nature can only be established if and insofar as Nutrilab accepts an order from the Customer or actually executes the order. Additional terms and conditions imposed by the Customer regarding the order that is placed by the Customer, or alterations that have been made in the quotation provided by Nutrilab do not mean a confirmation of the order, but a non-binding request to Nutrilab to adjust the quotation. Nutrilab is not obligated to comply with such request. If Nutrilab does not comply, no agreement has been established.
4.2 Possible (technical) demands by the Customer concerning the execution of orders or the delivery of goods by Nutrilab that deviate from the regular demands must be explicitly agreed upon in writing.
4.3 Dutch law applies to all agreements made with Nutrilab. Disputes will be settled by the Court of Oost-Brabant, location Den Bosch, unless parties explicitly agree to an alternative settlement of the dispute in writing.
5.1 The standard quality criteria of ISO 17025 (General requirements for the competence of testing and calibration laboratories) apply to all (research) methods, both specific standard methods and internal methods, executed by Nutrilab. Nutrilab is acknowledged by the Dutch Accreditation Council.
5.2 Nutrilab strives to execute the order within the (estimated) timeframe as indicated in the quotation, unless Nutrilab receives new information after the fact, or should another reason occur, which makes it unfeasible that this timeframe can be met. If necessary, Nutrilab and the Customer will agree upon a new timeframe as soon as possible, within which Nutrilab can probably finish its work. The set term however, cannot be considered a deadline, in the sense of Article 6:83 sub a, of the Dutch Civil Code.
5.3 By accepting the order Nutrilab is not obligated to more than striving for a result that is useful for the Customer by executing the work agreed upon. Nutrilab will execute the agreement to the best of its ability and in accordance with the requirements of good workmanship.
5.4 If both parties do not agree upon a specific standard method regarding a research assignment, Nutrilab will choose a method based on its own insights.
5.5 If it is foreseeable that the execution time is, or will be exceeded during the execution of the work, Nutrilab will consult the Customer to establish a new timeframe to be met with if necessary. The Customer will, by all standards, act reasonably and is obligated to cooperate in prolonging the execution time, save for special circumstances of a nature that this cannot be reasonably expected from the Customer. Nutrilab will never be in default solely by exceeding the execution time without a preceding warning or notice in writing. If a phased execution of the work is agreed upon, Nutrilab may delay the start of the work for a next phase until the Customer has paid the costs of the previous phase.
5.6 Substances and products or sample materials that are offered by or on behalf of the Customer for research must be properly packed and conserved by the Customer and provided with adequate information in observance with the applicable standards and regulations.
5.7 Nutrilab is not responsible for the representativeness of sample materials that are offered by or on behalf of the Customer or third parties.
5.8 If Nutrilab suspects that a sample or parts thereof might contain substances that are possibly hazardous to people or things without taking the necessary safety precautions during research, Nutrilab has the right to refuse the sample or to refuse researching it until the Customer can prove that the sample will not pose a threat or until the Customer can provide additional information through which Nutrilab can establish the necessary safety precautions. Nutrilab is not liable for any damage caused by delay in the execution of the work, if and insofar as that delay is caused by the before mentioned suspicion, even if it appears afterwards that the provided information was correct and complete.
5.9 The Customer is liable for all the damage that might occur through researching a sample insofar as that damage is (partly) caused by incorrect or incomplete information on the composition or properties of the sample provided by the Customer.
6.1 Unless otherwise agreed, Nutrilab is obligated to secrecy up until two years after the release date of the report, advice, et cetera, in which the agreement results.
6.2 If misconceptions occur as a consequence of the Customer having made the research results public, Nutrilab is released from the obligation to secrecy to the extent that Nutrilab reasonably needs to provide third parties with a clarification of the research results.
6.3 If the research results give ground to fear a threat to public health according to Nutrilab, or if a legal obligation is in order, Nutrilab is released from its obligation to secrecy regarding the relevant authorities. In that case, Nutrilab will inform the Customer, before proceeding to communicate the hazardous situation.
7.1 The Customer has the exclusive dispositional and transferrable right to the research results as intended by giving the order. However, during the period in which Nutrilab is obligated to secrecy in accordance with article 6.1 Nutrilab has the right to use these research results for its own purposes.
7.2 To the extent which the results of the work consist of analysis and measuring methods, working procedures, techniques, calculation models and programs, the Customer has a non-exclusive and non-transferrable dispositional right regarding such results. Nutrilab will have the right to use such methods, procedures, techniques, calculation models and programs for its own purposes and to use them for, or provide them to, third parties.
7.3 The dispositional rights as meant in article 7.1 and 7.2 will apply from the moment when full payment for the work has been received by Nutrilab.
7.4 Issued reports may only be published by the Customer verbatim, in their entirety and mentioning Nutrilab. Publication in another form is only allowed after permission in writing by Nutrilab.
7.5 The use of the result of the agreement for advertising as well as the use of the name Nutrilab and its logo are only allowed after explicit permission in writing by Nutrilab.
8.1 If the quotation states a ‘fixed price’, this price counts as the price that is agreed upon. If the quotation does not state a ‘fixed price’, the Customer and Nutrilab have agreed that the amount to be paid will be determined by Nutrilab’s prevailing rates. If the quotation states a ‘price indication’, the mentioned amount is nothing more than a non-binding estimation of the costs.
8.2 If Nutrilab and the Customer agree upon a fixed price, Nutrilab nonetheless maintains the right to increase this price without the Customer having the right to annul the agreement for that reason.
8.3 If, based on the second paragraph of this article and therefore different from the consequence of an alteration of the agreement, the price increase is more than 10% and takes place within 2 months after settling the agreement, the Customer has the right to extrajudicial annulment the agreement by means of a written explanation, unless Nutrilab is then still prepared to execute the agreement based on what was initially agreed upon, if the price increase results from an obligation for Nutrilab under the law or if it has been stipulated that the delivery will take place more than three months after settling the agreement.
8.4 Unless stated otherwise, all amounts mentioned by Nutrilab are excluding sales tax and other government taxes, shipping and administration costs and costs, when applicable, such as for a factory, workshop or stockroom, unless explicitly agreed upon and established otherwise.
8.5 All invoices by Nutrilab must be paid by the Customer within 30 days after the invoice date or within the term of payment as stated on the invoice by means of a transfer to a bank account number or IBAN provided by Nutrilab via the quotation, agreement or invoice, unless otherwise agreed upon. The Customer may not deduct the invoice amount, deduct the amount invoiced and/or suspend the payment.
8.6 If the customer exceeds the payment term, the Customer is legally in default and the Customer is obliged to pay a monthly interest rate of 1.5% from the moment the payment is overdue.
8.7 Nutrilab has the right to apply the payments made, first to reduction of costs, then to reduction of the accumulated interest on the overdue amount, and finally to reduction of the principal and current interest.
8.8 The Customer never has the right to a settlement of the owed amount. Objections against the amount owed to Nutrilab do not suspend the payment obligation. If the Customer does not appeal to section 6.5.3 (Articles 231 to 247 of book 6 of The Dutch Civil Code), he is also not entitled to suspend the payment for any other reason.
8.9 If the Customer is in breach of or in default in the (timely) execution of his obligations, all reasonable costs incurred in order to receive extrajudicial satisfaction are for the Customer. The extrajudicial costs will be 15% of the outstanding claim plus the interest as meant in paragraph 6 of this article, with a minimum of €50. However, if Nutrilab has incurred higher than reasonable costs for collecting the debt, the actual costs are eligible for compensation. Any judicial costs will also be recovered from the Customer.
8.10 Nutrilab reserves the right to send interim invoices. Nutrilab can demand advance payments at all times. If the Customer has not paid what is due, Nutrilab also has the right to suspend the fulfilment of its obligations.
8.11 In case of liquidation, bankruptcy or moratorium of payment by the Customer, the claims of Nutrilab and the Customer’s obligations to Nutrilab will be immediately claimable.
8.12 The payments made by the Customer will always serve to first settle all the owed interest and costs, second the claimable invoices that have not yet been paid, even if the Customer claims that the payment concerns an invoice of a later date.
9.1 All that is delivered by Nutrilab within the framework of the agreement remains the property of Nutrilab until the Customer has satisfactorily fulfilled all the obligations from the agreement made with Nutrilab.
9.2 Anything delivered by Nutrilab, and which falls within the scope of the retention of title according to paragraph 1, may not be resold or used as a means of payment. The Customer is not authorized to pledge or in any way encumber goods that are subject to retention of title.
9.3 The Customer must always do what may reasonably expected of him to safeguard the property rights of Nutrilab. If third parties seize the delivered items under retention of ownership and/or wish to establish rights thereon, the Customer is obliged to immediately notify Nutrilab. Furthermore, the Customer is under the obligation to insure everything that is delivered under the retention of title and to keep it insured against fire, damage caused by explosion or water, and against theft, and to submit the insurance policy for inspection by Nutrilab upon first request. In case of any possible payment on the insurance, Nutrilab will be entitled to this money. Insofar as this is necessary, the Customer will commit himself in advance to cooperate with Nutrilab regarding everything that may be necessary or desirable within this context.
9.4 If Nutrilab wants to exercise its retention of title as indicated in this article, the Customer will give Nutrilab and third parties appointed by Nutrilab his unconditional and irrevocable permission in advance to enter those places where Nutrilab’s properties are located and to recover them.
10.1 The goods and work delivered by Nutrilab are in compliance with the usual demands and standards that can be considered reasonable at the time of delivery/execution and for which they are normally intended for use within The Netherlands. The warranty mentioned in this article applies to goods that are intended for use within The Netherlands. For use outside The Netherlands the Customer must verify himself whether it is suitable for use there and comply with the conditions that apply. In that case, Nutrilab may establish different (warranty) conditions concerning the delivered goods or work to be executed.
10.2 All forms of warranty will cease to apply if a defect has occurred as a result of or ensuing from incorrect inexpert or inappropriate use thereof or use after the expiry date, incorrect storage or maintenance thereof by the Customer and/or by third parties when, without written permission by Nutrilab, the Customer or third parties have made alterations or tried to make alterations, if other items have been attached that should not be attached or if these were modified or treated in another manner than prescribed. The Customer is also not entitled to warranty if the defect is caused by or resulting from circumstances beyond the control of Nutrilab, including weather conditions (such as, but not limited to extreme rainfall or temperatures) et cetera.
10.3 The Customer is obliged to check (have checked) the delivered goods immediately when the goods are made available to him or the relevant work has been executed. Thereby the Customer ought to examine whether the quality and/or the quantity of the delivered goods are in accordance with what was agreed upon. Any visible shortcomings must be reported to Nutrilab in writing within seven days of delivery. Any shortcomings that are not visible must be reported immediately, but in any case, within fourteen days of discovery, to Nutrilab in writing. The report must contain as detailed as possible description of the shortcoming, so Nutrilab can respond adequately. The Customer shall provide Nutrilab with the opportunity to investigate a complaint or to have it investigated.
10.4 If the Customer files a claim, this will not suspend his payment obligation. In that case, the Customer is held to accept and pay for the other ordered goods and that which he has commissioned Nutrilab to do.
10.5 If a shortcoming is reported later, the Customer is no longer entitled to repair of, replacement of or compensation for the damage.
11.1 If Nutrilab should be liable, this liability is limited to what is allowed for in this provision.
11.2 Nutrilab is not liable for damage, of any nature, that is a result of Nutrilab relying on incorrect and/or incomplete information provided by or on behalf of the Customer.
11.3 If Nutrilab should be liable for any kind of damage, the liability of Nutrilab is limited to a maximum amount of twice the invoice value of the order, or at least to that part of the order to which the liability relates.
11.4 The liability of Nutrilab is in any case always limited to the amount paid out by its insurer in the case concerned.
11.5 Nutrilab is only liable for direct damage.
11.6 Direct damage is exclusively understood as the reasonable costs incurred in determining the cause and extent of the damage, to the extent the determination relates to damage in the sense of these terms and conditions, any reasonable costs incurred in order to have the faulty performance of Nutrilab conform the agreement, to the extent that these can be accounted to Nutrilab and reasonable costs, incurred to prevent or limit damage, insofar as the Customer can demonstrate that these costs have led to a limitation of direct damage as meant in these general terms and conditions. Nutrilab is never liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.
11.7 The Customer indemnifies Nutrilab and/or the persons engaged by Nutrilab in the execution of the order of its obligations against all claims of third parties on account of damage incurred by such third parties ensuing from the application or use of the research results by the Customer or party that the Customer has provided with the research results, with the exception of malicious intent or gross negligence on the side of Nutrilab and/or the persons engaged by Nutrilab in the execution of the order.
11.8 The Customer indemnifies Nutrilab and/or the persons engaged by Nutrilab in the execution of the order of its obligations against all claims of third parties on account of damage incurred by such third parties ensuing from the application or the use of the information the Customer has provided to Nutrilab in the context of the execution of the order.
11.9 The Customer is liable for damage suffered by Nutrilab and/or the persons engaged by Nutrilab in the execution of the order, during time spent on the Customer’s premises, or the premises of third parties, except for malicious intent or gross neglect on the side of Nutrilab and/or the persons engaged by Nutrilab in the execution of the order.
11.10 Nutrilab shall not be liable for damage ensuing from the fact that the research results are unfit for any use or any commercial application and/or that the application of the research results are in breach of the rights of third parties.
11.11 Nutrilab shall not be liable for damage ensuing from shortcomings of goods delivered to Nutrilab, including programs, and that Nutrilab has delivered to buyer, unless and insofar as Nutrilab can recover that damage from its supplier.
11.12 The limitations of liability specified in this article do not apply in the case and to the extent the damage can be attributed to intent or gross negligence by Nutrilab or its executive subordinates.
12.1 Nutrilab is not obliged to fulfil any obligation towards the Customer if it is thereby hindered as a result of a circumstance that cannot be attributed to fault, and which is not regarded as their responsibility by virtue of the law, legal action or according to generally accepted standards.
12.2 In these general terms and conditions Force Majeure is defined, in addition to its definition in law and legal precedent, as all external causes, foreseen or unforeseen, which Nutrilab cannot influence, but which prevent Nutrilab from fulfilling its obligations. Labour strikes at the company of Nutrilab or third parties are thereby included. Nutrilab also has the right to invoke Force Majeure if the circumstance preventing (further) fulfilment of the agreement occurs after Nutrilab should have fulfilled its commitment.
12.3 Nutrilab can can suspend the obligations of the agreement during the period of Force Majeure until the moment that Nutrilab will be able to fulfil these in the agreed upon manner.
12.4 Insofar as Nutrilab has already partially fulfilled his obligations resulting from the agreement at the moment the circumstance of Force Majeure commenced or will be able to fulfil them, and the part fulfilled or to be fulfilled is of independent value, Nutrilab has the right to separately invoice the fulfilled or to be fulfilled part. The Customer is obliged to pay this invoice as if it were a separate agreement.
13.1 The agreement between Nutrilab and the Customer is concluded for an indefinite period, unless the nature of the agreement suggests otherwise or if parties have explicitly agreed otherwise.
13.2 The Customer and Nutrilab can terminate the agreement per registered writing, and serving a notice of 3 months. The party that terminates the agreement is obliged to inform the other party about the reasons on which the termination is based. Termination will not release the Customer from his or her (financial) obligations to Nutrilab.
13.3 If the Customer does not meet with any of the obligations arising from an agreement established with Nutrilab and/or these general terms and conditions, in an adequate or timely manner the Customer is in default and Nutrilab, without having to give notice of default or judicial intervention, has the right to: (I) suspend the execution of the agreement until sufficient security concerning fulfilment has been established; or (II) dissolve all or part of the agreement with immediate effect, without Nutrilab being liable for any compensation for damage.
13.4 Parties have the right to dissolve the agreement, by means of a written notification, with immediate effect and without judicial intervention if the other party is declared bankrupt or is granted a suspension of payments or a request hereto has been filed at the court, or if the company of the other party is liquidated or (for a large part) discontinued, or in case of Force Majeure as established in article 13 of these terms and conditions and the situation of Force majeure has lasted more than 60 days.
13.5 Upon termination of the agreement, any amount receivable by Nutrilab from the Customer will become immediately due and payable. If Nutrilab suspends fulfilment of the obligations, it will retain its claim ensuing from the law and the agreement.
13.6 If Nutrilab proceeds to suspend or terminate, it will not be under any obligation to compensate for damage losses or costs ensuing from this in any way.
13.7 If the Customer can be held accountable for the termination, Nutrilab has the right to compensation for damages, including any ensuing direct or indirect costs.
13.8 If the Customer fails to fulfil the obligations ensuing from the agreement and this non-fulfilment justifies termination, Nutrilab has the right to terminate the agreement with immediate effect without any obligation to pay for or compensate losses and damages, while the Customer, on account of being in default, is obliged to pay for or compensate losses or damages.
13.9 If the Customer cancels a confirmed order either partially or in full, then the work that was carried out as well as the goods ordered or made available for that order, will be increased with possible supply, removal and delivery costs thereof and the man hours reserved for the execution of the agreement, will be charged to the Customer in their totality.
14.1 Nutrilab has the right to transfer its rights and obligations ensuing from an agreement to a third party. The customer does not have the right to transfer its rights and obligations ensuing from an agreement to a third party without written permission from Nutrilab.
14.2 The Court of Oost-Brabant, location Den Bosch has exclusive jurisdiction to hear any disputes between parties. Nevertheless, Nutrilab has the right to bring the dispute before the legally competent judge.
14.3 Concerning this agreement and concerning the agreements ensuing from it, parties will submit to the Dutch law.
In our free white paper, we share information about the new rules of legislation, innovations in analysis and we tell you about the digitisation of the market. Download our white paper for free!